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Subject: Criteria for Board Candidates
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BarbaraG15
(Idaho)

Posts:13


01/03/2021 7:31 PM  
Our board has suddenly, just a month before election, changed the criteria for members to run for the board. They added the questions of:

Have you been convicted of a felony?

Have you ever not paid your HOA dues in our state? Or in any other state?


Previously the only criteria was the general question of what can you contribute if you are elected to the board. There is nothing in our CCRs or bylaws about these new questions.
MarkM19
(Texas)

Posts:716


01/03/2021 7:51 PM  
Barbara,
These are all fair questions that are normally are asked in all election documents that I have seen over my 11 years running and being on boards. The felon question is vitally important in my opinion. What if a Child rapist was to move in to your HOA and did a great job of being an average guy as far as you can see? You you think he was a great person? Would his or her past make a difference if you knew they were a child molester? In most cases it should and in All cases it should be disclosed.

Regarding the Have you paid your dues it really comes down to the duties of the office you wish to get the candidate elected to serve. I personally think this is one of the most important assets of being a good board member. I think people who not pay their bills should never be responsible for managing HOA bills. I also believe that every board member should be above the fray and always be beyond reproach. I personally wish that every board candidate would have to have their credit rating on the application. Many think that this is Extra but in my mind if you can not handle personal finances why would we expect you to handle the HOAs?

Following.
JohnC77
(Washington)

Posts:434


01/03/2021 7:57 PM  
Posted By MarkM19 on 01/03/2021 7:51 PM
Barbara,
These are all fair questions that are normally are asked in all election documents that I have seen over my 11 years running and being on boards. The felon question is vitally important in my opinion. What if a Child rapist was to move in to your HOA and did a great job of being an average guy as far as you can see? You you think he was a great person? Would his or her past make a difference if you knew they were a child molester? In most cases it should and in All cases it should be disclosed.

Regarding the Have you paid your dues it really comes down to the duties of the office you wish to get the candidate elected to serve. I personally think this is one of the most important assets of being a good board member. I think people who not pay their bills should never be responsible for managing HOA bills. I also believe that every board member should be above the fray and always be beyond reproach. I personally wish that every board candidate would have to have their credit rating on the application. Many think that this is Extra but in my mind if you can not handle personal finances why would we expect you to handle the HOAs?

Following.



1. As a follow-up, what happens if the insurance company won't write a D&O or Fidelity policy because of a felon on the board.
2. If you have a management company handling the day-to-day operation and the banking, what does credit rating have to do being a board member?
AugustinD


Posts:4828


01/03/2021 8:08 PM  
Posted By BarbaraG15 on 01/03/2021 7:31 PM
Our board has suddenly, just a month before election, changed the criteria for members to run for the board. They added the questions of:

Have you been convicted of a felony?

Have you ever not paid your HOA dues in our state? Or in any other state?


Previously the only criteria was the general question of what can you contribute if you are elected to the board. There is nothing in our CCRs or bylaws about these new questions.
If this Board is disqualifying candidates for either of these reasons, then the Board needs to cite what sections of the governing documents or state law give the Board this power.

State law and the governing documents grant only certain powers to Boards. State law and governing documents usually require very little when it comes to who is a candidate for the board.

But trust me, like no one at your HOA/condo is going to understand this little lesson from HOA Law 101.
MarkM19
(Texas)

Posts:716


01/03/2021 8:33 PM  
John and Augustine,
Most HOA boards are responsible for around 1 Million dollars of HOA assets including dues and Reserve accounts. If a person can not be responsible for paying their personal responsibilities why should an HOA expect them to be able to make good decision with our HOA assets? Just like anyone applying for a job past performance is the only indicator of future performance.

It is much easier to not vote someone on your board than get them fired. The time to ask questions is before they are elected not after.
JohnC77
(Washington)

Posts:434


01/03/2021 8:45 PM  
Posted By MarkM19 on 01/03/2021 8:33 PM
John and Augustine,
Most HOA boards are responsible for around 1 Million dollars of HOA assets including dues and Reserve accounts. If a person can not be responsible for paying their personal responsibilities why should an HOA expect them to be able to make good decision with our HOA assets? Just like anyone applying for a job past performance is the only indicator of future performance.

It is much easier to not vote someone on your board than get them fired. The time to ask questions is before they are elected not after.



How do you accomplish that? Where do you set the bar? Wife pays the bills, the husband couldn't balance the checkbook to save his life.

It is possible that their board may have the ability to amend the Bylaws without membership approval. It is not unheard of.
AugustinD


Posts:4828


01/03/2021 9:28 PM  
MarkM19, I was addressing whether a board could lawfully disqualify someone from being a candidate based on such-and-such criteria. I say only if the governing docs or statute permits this.

Regarding your concerns, I suppose if a board wants to disclose someone's past conviction, then I think it should check with an attorney. But disclosure is different from not allowing such a person even to run for office.

CathyA3
(Ohio)

Posts:1484


01/04/2021 5:26 AM  
I agree that these things should be valid criteria for selecting board members. I also agree that without support from either the bylaws or state law, the board doesn't have the authority to exclude candidates based on these criteria.

However...

These things are completely legitimate to discuss prior to the election, and homeowners are well within their rights to not vote for people as a result. There are public records that may help you tease out some of this info For instance, my account monitoring service notifies me whenever a convicted sexual offender moves into my area. Other felony convictions may also be public info. Foreclosure info ditto. And there are a bunch of services on the web that compile personal info (for a fee). There is nothing to stop anyone from Googling a candidate's name and seeing what there is to see.
SheliaH
(Indiana)

Posts:3670


01/04/2021 5:49 AM  
As others have said, those are fair questions, but as AugustinD noted, if your Bylaws don't specifically state affirmative answers keep you off the board, not answering shouldn't stop you from running or being elected.

Then again, I'd won't to know why someone would refuse to answer. If he or she was a convicted felon, I'd want to know what it was for and how long ago it happened. If it was years and years ago, and the person has lived an honest life since, that shouldn't necessarily keep him or her off the board, although I don't know if I'd appoint him/her to the position of treasurer.

If you think someone's trying to keep someone else off the board, why not ask the board This question in front of everyone? Along with if THEY have something to hide? Same goes for you if you're running - do YOU have something you'd like to share with the class?
AugustinD


Posts:4828


01/04/2021 7:14 AM  
-- Regarding asking Idaho job applicants about records of criminal conviction and hiring based in part or in full on same, see:

https://www.blr.com/HR-Employment/Staffing-Training-/Background-Checks-in-Idaho

https://idahoatwork.com/2013/06/18/seven-things-to-remember-about-criminal-background-checks/

-- The second link above describes how the federal Equal Employment Opportunity Commission (EEOC) starting around 2013 has started coming after employers who use criminal background checks as part of the employers' hiring criteria when a criminal background check would not turn up anything disqualifying when it comes to the skills a job actually requires.

-- The U. S. Department of Housing and Urban Development (HUD) is now rattling sabers on the same point. See https://www.hud.gov/sites/documents/HUD_OGCGUIDAPPFHASTANDCR.PDF . I have not heard that HUD has actually ever taken action on this with a HOA or condo. I think HUD or maybe some anti-discrimination nonprofits may have started taking action in the case of apartment complexes, when an apartment complex screens out potential residents based on criminal background. (I say "rattling sabers" as criticism of HUD. It puts out a lot of nonsense about how it will enforce against hostile environment discrimination. HUD invites people to submit claims for same. Once a person submits a claim for the latter, then HUD goes looking for things like personal dislike for the housing provider to disqualify such complaints. Golly, is it possible that a resident of an apartment complex might dislike an apartment manager who routinely uses the N word? Is it possible that routine use of the N-word creates a hostile environment? Is an FHA violation still present when a resident says they do not like the manager but the fact is that the manager uses the N-word frequently? Doh yes.)

-- What to do if one is on a Board and learns that a candidate or applicant for a board seat vacancy has a criminal conviction? Consider how long ago it was. Consider whether the conviction might indicate unsuitability for board service. A policy (stated or unstated) of disqualifying a HOA Owner for applying for appointment to be a director (when a vacancy on the board arises between annual meetings/elections) because the applicant has a criminal conviction is imprudent. Consider the individual circumstances for each situation.

When the annual election nears, is a board breaking the law by disclosing a candidate's criminal history? To give an intelligent answer (as best I can), I am changing the question: Is a board breaking the law by disclosing that, say, a candidate is a single mother with five kids, and so the candidate would struggle to keep up with board activities? Yes. I advise boards not to disclose a criminal history.

When the annual election nears, and at a town hall-style meeting for candidates sponsored by the HOA, can an Owner lawfully ask a candidate if she/he has a criminal history? For the same reason as above, I advise Boards to disallow such questions. Maybe the following question would be allowable: "Do you have any kind of criminal history that might result in the HOA having to pay more for its insurance, based on covenant such-and-such where fidelity bonds are mentioned?"





JohnC46
(South Carolina)

Posts:10366


01/04/2021 7:17 AM  
Barbara

Is this a criteria or just some questions? While I may not agree with the questions if they are not a criteria, so be it.
MarkM19
(Texas)

Posts:716


01/04/2021 7:29 AM  
So Barbara comments were about the candidate statement IMO. It asks the simple question if you have ever been convicted of a Felony. It does not ask for the person to give any details. I think this is just a way of letting the potential candidate not complete the application if he/she has a record that might be disclosed later causing them and the board embarrassment.

I am only familiar with Ca. and Texas but that question was on both candidate questioners every year that is asked to be completed. I think it is a fare question. I also think it is no different than a person applying for a job and they say do you have a Collège degree?
GeorgeS21
(Florida)

Posts:3602


01/04/2021 8:19 AM  
Cathy has, again, provided a very balanced answer.
BarbaraG15
(Idaho)

Posts:13


01/04/2021 12:43 PM  
The problem is that they are using the felon question to further discredit a candidate. This has happened before. Last year, the Board president tried to discredit a candidate who held Town Halls to help neighbors learn about HOAs, CCRs. Sorely needed education in a growing neighborhood. The Board president called the town halls 'illegal and unsanctioned' in the opening statement of the election. All candidate should have a level playing field and for a board to criticize a candidate this way was a low blow. There's nothing illegal about neighbors getting together to discuss the neighborhood, especially basic things like teaching people about the CCRs, how to get on the property management website, etc. Nor hould a Board have to approve such gatherings.

There should be a limit to how long ago a felony occurred. In this case, it is a charge from 16 years ago. I understand the need to have upstanding board members. Certainly one wouldn't want a felony who had extorted funds, was arrested for forgery, etc. A past sexual felony would not affect the duties of serving on a Board unless there were HOA events with children present. Background checks have not been done on the current board members. When asked about this, the question goes unanswered.
BarbaraG15
(Idaho)

Posts:13


01/04/2021 12:50 PM  
Thank you, John. By the way perhaps I shouldn't call it criteria. They are just questions but considering the history of this Board it becomes criteria in their eyes.
CathyA3
(Ohio)

Posts:1484


01/04/2021 1:56 PM  
Posted By BarbaraG15 on 01/04/2021 12:43 PM
The problem is that they are using the felon question to further discredit a candidate. This has happened before. Last year, the Board president tried to discredit a candidate who held Town Halls to help neighbors learn about HOAs, CCRs. Sorely needed education in a growing neighborhood. The Board president called the town halls 'illegal and unsanctioned' in the opening statement of the election. All candidate should have a level playing field and for a board to criticize a candidate this way was a low blow. There's nothing illegal about neighbors getting together to discuss the neighborhood, especially basic things like teaching people about the CCRs, how to get on the property management website, etc. Nor hould a Board have to approve such gatherings.

... snip ...




I want to put a little nuance on this.

The problems with meetings of this sort is that they're often a source of misinformation.

I've often said that you don't really understand what you've bought until you've served on the board. I've served close to 15 years on two condo boards, had some excellent training provided by our association's attorneys, and I'm still learning new things from others on this website. For instance, the CC&Rs are written in legalese and can be difficult to understand. I talked to our attorney more than once about "what on earth does this mean?" I can pretty much guarantee that homeowner discussions of CC&Rs are getting at least some of it wrong.

Besides the misinformation, these meetings can appear to be "official" in the eyes of many homeowners, so they'll take whatever is said as gospel which can lead to future problems.

Finally, meetings like this are favorite soapboxes for homeowners who have an agenda and who are trying to stir up trouble. Without knowledgeable people in attendance, homeowners won't be able to distinguish pot stirring from discussions of bona fide issues.

So the meetings can end up being counterproductive, which is why the board is rightfully concerned.

That said, the meetings apparently are filling an unmet need, and good for the homeowners for wanting to learn this stuff. Boards should be using all available avenues to educate the community: website, newsletters, and the like. But avoid social media, since it all too frequently degenerates into griping and mud slinging.

AugustinD


Posts:4828


01/04/2021 3:57 PM  
Posted By BarbaraG15 on 01/04/2021 12:43 PM
There should be a limit to how long ago a felony occurred. In this case, it is a charge from 16 years ago. I understand the need to have upstanding board members. Certainly one wouldn't want a felony who had extorted funds, was arrested for forgery, etc. A past sexual felony would not affect the duties of serving on a Board unless there were HOA events with children present. Background checks have not been done on the current board members. When asked about this, the question goes unanswered.
You should get off the internet; print out the information at the sites I linked; and send these to the Board and the person with the felony record. Consider filing a complaint with HUD.
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